Eichmann: Thoughts on a Legal Landmark

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The Second Adolf

As an LLM student focusing on human rights issues, and hoping to one day build a practice around criminal law, it surprises me to find that so few of the aspiring criminal lawyers I talk to are familiar with the term:  “universal jurisdiction.”

In a nutshell, universal jurisdiction is a rule of custom which says that, when it comes to certain heinous crimes, any state may choose to prosecute the offender — no matter where the offender is from, no matter who the offender happens to be, and no matter where the crime took place. This international rule came about because of pirates robbing ships at sea. It was clear that all states would need to act together in order to bring pirates to justice. Today, however, universal jurisdiction has been extended to cover genocide, torture and other crimes against humanity.

Cases in recent times have seen General Pinochet arrested in London over torture committed in Chile, and ex-President Montt indicted in Spain over genocide in Guatemala. In 2011, George W. Bush even cancelled a trip to Switzerland over concerns that, once on Swiss soil, he could be arrested for authorising torture.

An important case which helped to extend universal jurisdiction from piracy to crimes against humanity is the trial of Nazi war criminal, Adolf Eichmann. This coming April will mark 53 years since the trial in Israel of “the second Adolf” who was responsible for putting Hitler’s “Final Solution” into effect. Eichmann’s trial began on 11th April 1961. He was found guilty of crimes against the Jewish people and executed the following year, after his appeal had failed.

Having achieved a good mark recently for an essay about this case, I thought that I would share some of my thoughts with readers.

Eichmann’s case is interesting because the State of Israel did not exist at the time of the Holocaust. We can therefore see universal jurisdiction being exercised in Asia to bring a European criminal to justice, and years after his dreadful crimes were committed. However, in my opinion, the Eichmann case has flaws;  he should have been tried by an ad hoc tribunal, or by some other state than Israel.

Traditional rules of natural justice demand that cases be decided without bias, actual or apparent. However much Eichmann deserved to be punished, there was a real possibility of bias favouring conviction in this case. Eichmann’s mission had been to exterminate the Jewish people, and yet, he was tried by Jewish judges in the self-proclaimed “State of the Jews.” Moreover, under Israeli law, the crime of genocide (which Eichmann had committed) was technically termed a “Crime Against The Jewish People.”

All of this might suggest that Eichmann’s case cannot be likened to the indiscriminate trial of some random pirate — as the Israeli judges argued it could.

The Court also remarked that a threat to Jews anywhere is a threat to the State of Israel, but there was no precedent to support such a broad assertion. Indeed, the Court appeared to be reinforcing its ‘universal’ claim to Eichmann, and masking its apparent bias, by compounding universal jurisdiction with protective jurisdiction — that is, the right of every state to protect its national interests against foreign criminal activity. Such prosecutions are typically brought for acts of treason, or the counterfeiting of passports and currency (etc), but not to protect a worldwide group from genocide.

That having been said, Eichmann’s case makes for powerful reading. Its reasoning may have been flawed, but without a doubt, the right man was brought to justice.

To read the full transcript of Eichmann’s trial and appeal, click here.

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